Partly allowed

Lazarus S/O. Kanithamma Alias Samuel Bappuri v. Satyanarayana Munakala S/O. M. Rangaswamy

Karnataka HC14 Sept 2023MFA/101985/2023

Case brief

AI extract

What is this about?

In these miscellaneous first appeals, the High Court modified a Motor Accident Claims Tribunal award regarding compensation for a fatal road accident. The Court enhanced the compensation awarded to the family of the deceased from Rs. 20.13 lakhs to Rs. 21.24 lakhs based on Supreme Court guidelines, while upholding the insurer's liability and right of recourse. The appeals were allowed in part.

What did the court decide?

Compensation enhanced from Rs. 20,13,000 to Rs. 21,24,000 with 6% interest. Insurer to deposit amount and recover from moped owner if necessary.

Lazarus S/O. Kanithamma Alias Samuel Bappuri Vs… — Motor Accident Claims | Karnataka HC (2023)

¶1

¶2

NC: 2023:KHC-D:10699-DB MFA No. 102937 of 2022 C/W MFA No. 101985 of 2023

¶3

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

¶4

DATED THIS THE 14^TH DAY OF SEPTEMBER, 2023

¶5

PRESENT

¶6

THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR

¶7

AND

¶8

THE HON'BLE MR JUSTICE G BASAVARAJA

¶9

MISCELLANEOUS FIRST APPEAL NO. 102937 OF 2022 (MV-D)

¶10

C/W

¶11

MISCELLANEOUS FIRST APPEAL NO. 101985 OF 2023 (MV-D)

¶12

IN MFA NO. 102937 OF 2022

¶13

BETWEEN:

¶14

THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., ANKOLA ARCADE, OPPO. DISTRICT COURT, DHARWAD, REPRESENTED BY THE AUTHORIZED SIGNATORY, REGIONAL OFFICE, HUBBALLI-23.

¶15

…APPELLANT

¶16

Digitally signed by SHIVAKUMAR HIREMATH Date: 2024.01.08 16:47:17 +0530

¶17

(BY SMT. SHARMILA M. PATIL, ADVOCATE)

¶18

AND:

¶19

LAZARUS S/O. KANITHAMMA @ SAMUEL BAPPURI, AGE: 42 YEARS, OCC: SALESMAN, R/O: GANDHIWADA, HUBBALLI, NOW AT GANDHI NAGAR, DHARWAD-580030.

¶20

FABITHA JASLET D/O. LAZARUS BAPPURI AGE: 21 YEARS, OCC: STUDENT, R/O: GANDHIWADA, HUBBALLI, NOW AT GANDHI NAGAR, DHARWAD-580030.

¶21

¶22

NC: 2023:KHC-D:10699-DB MFA No. 102937 of 2022 C/W MFA No. 101985 of 2023

¶23

ANJALEENA JASLET D/O. LAZARUS BAPPURI AGE: 17 YEARS, OCC: NIL, R/O: GANDHIWADA, HUBBALLI, NOW AT GANDHI NAGAR, DHARWAD-580030 SINCE RESPONDENT NO.3 IS MINOR REPRESENTED BY HER NEXT FRIEND NATURAL FATHER RESPONDENT NO.1.

¶24

SATYANARAYA MUNAKALA S/O. M. RANGASWAMY, AGE: 48 YEARS, OCC: BUSINESS, R/O: H. NO.2-48, LUTUR, PAMALAPADU, DIST: KURNOOL, ANDRA PRADESH-518001, (OWNER OF LORRY BEARING NO.AP-21/TT-1543)

¶25

…RESPONDENTS

¶26

(BY SRI C.S. NAGASHETTI, ADVOCATE FOR R1 TO R3; NOTICE SERVED TO R4)

¶27

THIS MISCELLANEOUS FIRST APPEAL FILED U/S.173(1) OF MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 28.01.2022 PASSED IN MVC NO.04/2019 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE MOTOR ACCIDENT CLAIMS TRIBUNAL, DHARWAD, ALLOWING THE APPEAL AND TO PASS ANY OTHER ORDER/S AS THIS HON’BLE COURT DEEMS FIT UNDER THE FACTS CIRCUMSTANCES OF THE CASE.

¶28

IN MFA 101985 OF 2023

¶29

BETWEEN:

¶30

LAZARUS S/O. KANITHAMMA @ SAMUEL BAPPURI, AGE: 42 YEARS, OCC: SALESMAN, R/O: GANDHIWADA, HUBBALLI, NOW AT GANDHI NAGAR, DHARWAD.

¶31

- 3 - NC: 2023:KHC-D:10699-DB MFA No. 102937 of 2022 C/W MFA No. 101985 of 2023

¶32

FABITHA JASLET D/O. LAZARUS BAPPURI, AGE: 21 YEARS, OCC: STUDENT, R/O: GANDHIWADA, HUBBALLI, NOW AT GANDHI NAGAR, DHARWAD.

¶33

ANJALEENA JASLET D/O. LAZARUS BAPPURI, AGE: 17 YEARS, OCC: STUDENT, R/O: GANDHIWADA, HUBBALLI, NOW AT GANDHI NAGAR, DHARWAD.

¶34

(SINCE APPELLANT NO.3 IS MINOR REPRESENTED NATURAL FATHER APPELLANT NO.1) …APPELLANTS

¶35

(BY SRI C.S. NAGASHETTI, ADVOCATE)

¶36

AND:

¶37

SATYANARAYANA MUNAKALA S/O. M. RANGASWAMY, AGE: 48 YEARS, OCC: BUSINESS, R/O: H. NO.2-48, LUTUR, PAMALAPADU, DIST: KURNOOL, ANDRA PRADESH-518001.

¶38

THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LTD., ANKOLA ARCADE, OPP. DISTRICT COURT, DHARWAD.

¶39

…RESPONDENTS

¶40

(BY SMT. SHARMILA PATIL, ADVOCATE FOR R2)

¶41

THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, PRAYING TO ENHANCED THE COMPENSATION AND MODIFY THE JUDGMENT AND AWARD DATED 28.01.2022 PASSED IN MVC NO.04/2019 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL AT DHARWAD.

¶42

¶43

NC: 2023:KHC-D:10699-DB MFA No. 102937 of 2022 C/W MFA No. 101985 of 2023

¶44

THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, BASAVARAJA, J., DELIVERED THE FOLLOWING:

¶45

JUDGMENT

¶46

Both these appeals arise out of judgment and award dated 28^th January, 2022 passed in MVC No.04 of 2019 in II Additional Senior Civil Judge and Motor Accident Claims Tribunal at Dharwad, (for brevity, hereinafter referred to as the “Tribunal”).

¶47

For the sake of convenience, the parties in this appeal are referred to as per their status and rank before the Tribunal.

¶48

Brief facts of the case are that, on 29^th October, 2018 when deceased Smt. Mary @ Sujata was proceeding as a pillion rider on Moped bearing Registration No.KA-63/H5202 which was ridden by Lazarus, and when they were near to St. Andrews school, Opposite PWD Office, Gadag Road, Hubballi, at that time, the driver of lorry bearing Registration No.AP-21/TT-1543 driving the same in high speed, rash and negligent manner, in order to overtake other vehicles, dashed to the said moped, due to which the rider and pillion rider

¶49

5 - NC: 2023:KHC-D:10699-DB MFA No. 102937 of 2022 C/W MFA No. 101985 of 2023

¶50

sustained injuries and the said Mary @ Sujata succumbed to the injuries on the spot. The body was shifted to KIMS, Hubli wherein was post-mortem was conducted and later the body

¶51

was handed over to the family of the deceased. It is contended that prior to accident, deceased was aged about 38 years, was hale and healthy, and was taking tuitions to students of 1^st to 5^th standard and was earning Rs.15,000/per month and used to contribute the same to the family. The accident occurred due to the sole negligence of drive of the lorry and respondent No.1 being the owner and respondent No.2 being the insurer are liable to pay the compensation. Hence, the petitioners being the husband and children of the deceased, have preferred the claim petition.

¶52

Pursuant to issuance of notice, respondent No.1 did not appear in spite of service of notice. Respondent No.2Insurance Company appeared and filed objections. The gist of the objections of respondent No.2 is that acceded occurred due to rash and negligent riding of the moped by its rider. Further offending lorry was not having fitness and permit and the driver of the offending lorry was not having valid driving licenceand thereby committed breach of terms of policy. It is

¶53

NC: 2023:KHC-D:10699-DB MFA No. 102937 of 2022 C/W MFA No. 101985 of 2023

¶54

¶55

also denied that the accident had not occurred on 29^th October, 2018. The respondent No.1 has not furnished the particulars of the vehicle. It is also contended that the moped was being ridden with three persons and the petitioners are not dependents of the deceased. It is further contended that

¶56

the petition suffers from non-joinder of necessary parties. The rider of the moped was also not having driving licence. The claim of the petitioners is unreasonable and exorbitant and further denying all other averments made in the petition, sought for dismissal of the claim petition.

¶57

Based on the rival pleadings, the Tribunal framed the following issues for its consideration:

¶58

"1. Whether the Petitioners prove that on 29-102018 when the deceased by name Mary @ Sujata was proceeding on motorcycle bearing Reg. No.KA-63/H5202 as pillion rider towards Gandiwada from Hubli and at that time at about 08.30 p.m., the driver of the lorry bearing Reg. No.AP-21/TT- 1543 drove it in rash and negligent manner endangering to human life and safety and hit to the said motor bike as a result of which the deceased has sustained grievous injuries and subsequently scummed to the injuries?

¶59

¶60

NC: 2023:KHC-D:10699-DB MFA No. 102937 of 2022 C/W MFA No. 101985 of 2023

¶61

2. Whether the petition is bad for non-joinder of necessary parties?

¶62

3. Whether the Petitioner is entitled for

¶63

compensation? If so, what quantum and from whom?

¶64

4. What order or award?"

¶65

6. To substantiate the petition averments, the

¶66

petitioner No.1 examined himself as PW1 and got marked twelve documents as Exhibits P1 to P12. On behalf of respondents, Administrative Officer of the respondent No.2Insurance Company and examined as RW1 and got marked two documents as Exhibits R1 and R2.

¶67

7. Having heard the arguments of the parties, the

¶68

Tribunal answered the issued as under:

¶69

"Issue No.1 : In the Affirmative, Issue No.2 : In the Affirmative, Issue No.3 : Partly in the Affirmative, Issue No.4 : As per the final order for the following:"

¶70

In view of the above finding, the Tribunal allowed

¶71

the claim petition in part and awarded compensation of Rs.20,13,000/- with interest at the rate of 6% per annum

¶72

8 - NC: 2023:KHC-D:10699-DB MFA No. 102937 of 2022 C/W MFA No. 101985 of 2023

¶73

from the date of petition till realisation. Being aggrieved by the impugned judgment and award, the Insurance Company has preferred Miscellaneous First Appeal No.102937 of 2022 on the ground of liability and also questioning the quantum of compensation. Being not satisfied with the amount of compensation, claimants have preferred Miscellaneous First Appeal No.101985 of 2017 seeking enhancement in compensation.

¶74

Smt. Sharmila M Patil, learned counsel appearing for the Appellant-Insurance Company submits that impugned judgment and award is contrary to law, facts, evidence and material on record. The rider of the moped was riding the moped with driving licence and without headgear. The Tribunal has erred in saddling the liability on the Insurance Company. The rider of the moped was riding with two pillion riders and hence has violated provisions of Section 128 of Motor Vehicles Act, 1988, so also, the terms of Insurance policy. The Tribunal ought to have saddled contributory negligence in the ratio of 50:50 on both vehicles. It is also submitted that the compensation awarded under all heads is

¶75

- 9 - NC: 2023:KHC-D:10699-DB MFA No. 102937 of 2022 C/W MFA No. 101985 of 2023

¶76

exorbitant and excessive and on all these grounds sought to allow the appeal by reducing the compensation.

¶77

On the other hand, Sri C.G. Nagashetti, learned counsel appearing on behalf of the claimants the impugned judgment and award has been passed without considering the material documents and evidence on record. The Tribunal failed to appreciate the contention of the claimants that the deceased was earning Rs.15,000/- by giving private tuitions and has erred in taking the meager income of Rs.11,000/- per month. On these grounds, it is sought to allow the appeal by suitably enhancing the compensation.

¶78

Having heard the learned counsel for the parties,

¶79

the following points would arise for our consideration in these appeals:

¶80

Whether the appellant-Insurance Company has made out a ground to interfere with the impugned judgment and award?

¶81

Whether the claimants are entitled for enhancement of compensation?

¶82

Whether the Insurance Company is liable to pay compensation?

¶83

10 -

¶84

NC: 2023:KHC-D:10699-DB MFA No. 102937 of 2022 C/W MFA No. 101985 of 2023

¶85

What order or award?

¶86

Our answer for the above points are as under:

¶87

Point No.1: in the negative; Point No.2: in the negative; Point No.3: partly in the affirmative; Point No.4: as per final order

¶88

Regarding Point No.1:

¶89

Having heard the learned counsel for the parties,

¶90

we have gone through the material on record and perused the impugned judgment and award. As regards liability of the Insurance Company is concerned, the Tribunal, at paragraphs 9 to 11, has observed as follows:

¶91

" 9. The petitioners have produced certified copies of FIR in panchanama, crime No67/2018 of Hubli East Traffic police station, complaint, spot panchanama, seizure panchanama, MVA report, inquest PME report of the deceased and charge sheet, as per Ex.P.1 to 7. On perusal of complaint as per Ex.P.2 it goes to show that, after the accident the petitioner No.1 lodged complaint against the driver of lorry bearing No.AP-21/TT-1543. Based on the said complaint the FIR came to be registered as per Ex.P.1. After the completion of investigation the police have filed charge sheet against

¶92

11 -

¶93

NC: 2023:KHC-D:10699-DB MFA No. 102937 of 2022 C/W MFA No. 101985 of 2023

¶94

the driver of the above said lorry as per Ex.P.7. Wherein it is stated that, the driver of the lorry namely Munawar SS Karim @S Munavar S/o S Karim, near Mahabhadiya Majid Atmakur Karnool of Andrapradesh, committed the offences punishable U/Sec.279, and 304A of IPC and Sec.134 A & B and 187 of MV Act. The PME report which is produced at Ex.P.6 which shows about the death of Mary @ Sujata due to injuries sustained in the accident.

¶95

10. On the other hand the respondent No.2 has contended that, the accident in question was occurred due to rash and negligent driving of the rider of the moped itself wherein the deceased was proceeding as pillion rider. In order to substantiate the said contention the respondent No.2 examined its administrative officer as R.W.1 and produced the documents as per Ex.R1 and R.2. The Ex.R.1 is the authorization letter and Ex.R.2 is the policy copy. In her chief examination R.W.1 has reiterated the contents of the objections. On perusal of cross examination of R.W.1 it appears that they have not denied about filing of the charge sheet against the driver of lorry. On careful perusal of petition averments, as well as the objection statement and the evidence available on record it clearly goes to show that, the accident in question was occurred only due to rash and negligent driving of the offending lorry bearing No.AP21/TT-1543 which is owned by the respondent No.1 and insured with the respondent No.2. With these observations this court come to the conclusion that, due to the accident the above said Mary @ Sujata sustained

¶96

NC: 2023:KHC-D:10699-DB MFA No. 102937 of 2022 C/W MFA No. 101985 of 2023

¶97

- 12 -

¶98

injuries and succumbed to those injuries. Accordingly the issue No.1 is answered in the Affirmative .

¶99

11. Issue No.2: The respondent No.2 insurance company has contended that, the petition filed by the petitioners suffers from non joinder of necessary parties as the rider, owner and insurer of the moped bearing No.KA-63/H-5202 are the necessary parties to the petition. While discussing issue No.1 it is observed and established that, the accident in question was occurred due to sole negligence of the driver of lorry bearing No.AP-21/TT-1543. The counsel for the respondent No.2 has vehemently argued that, on the moped there were 2 pillion riders therefore, the petitioner No.1 being the rider of the said motorcycle violated the law and thereby contributed his negligence to the accident. In this regard in the decision relied upon by the counsel for the petitioners the Hon'ble Apex Court has held that, "the riding of more than 2 persons on a motorcycle is in violation of law. But, in case of accident, it by itself, cannot establish contributory negligence." In the said case the motorcycle was hit by the car behind and in the instant case on hand the moped was hit by the lorry on right side break lever and thereby caused the accident. Therefore, riding of motorcycle alongwith 2 pillion rider cannot be considered as contributory negligence. Hence the rider, owner and insurer of the moped are not necessary parties to the petition. Therefore issue No.2 is answered in the Negative. "

¶100

- 13 - NC: 2023:KHC-D:10699-DB MFA No. 102937 of 2022 C/W MFA No. 101985 of 2023

¶101

Upon re-examination, we do not find any legal

¶102

infirmity with regard to the finding recorded by the Tribunal and accordingly we answer point No.1 in the negative.

¶103

Regarding Point No.2:

¶104

As regards quantum of compensation is concerned, the Tribunal, in the course of its judgment, has observed that though it is contended by the claimants that the deceased was earning Rs.15,000/- per month by running tuition classes for 1^st to 5^th standard students, but the same is not substantiated nor proved by any documentary evidence. The Tribunal has taken the same at Rs.11,000/- per month which is not in consonance with the guidelines issued by the Karnataka State Legal Services Authority. According to the chart, the notional income is to be taken at Rs.11,750/-. Accordingly, the same is taken. Further, as per the decision of Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157, 40% is to be added towards future prospects. Considering the age of the deceased as 38, the Tribunal has rightly adopted the

¶105

- 14 - NC: 2023:KHC-D:10699-DB MFA No. 102937 of 2022 C/W MFA No. 101985 of 2023

¶106

multiplier of 15. As there are three dependents, one-third is to be deducted towards personal income of the deceased. Accordingly, the loss of dependency comes to Rs.19,74,000/-.

¶107

The same is awarded as against Rs.18,48,000/- awarded by the Tribunal. Further, keeping in mind the decision of Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE COMPANY LIMITED v. NANU RAM AND OTHERS reported in (2018)18 SCC 130, the claimants are entitled for following compensation:

¶108

Sl.No.	Head	Amount (Rs.)
1.	Loss of dependency	19,74,000.00
2.	Loss of consortium Rs.41,000 x 3	1,20,000.00
3.	Loss of estate	15,000.00
4.	Towards transportation of dead body and funeral expenses	15,000.00
	Total	21,24,000.00

¶109

Accordingly, we answer point No.2, partly in the affirmative.

¶110

Regarding Point No.3:

¶111

It is submitted by the learned counsel appearing

¶112

for the Insurance Company that the driver of lorry was not having valid driving licence as on the date of accident. The

¶113

- 15 - NC: 2023:KHC-D:10699-DB MFA No. 102937 of 2022 C/W MFA No. 101985 of 2023

¶114

Respondent No.2 has produced Exhibit P2-copy of policy of offending lorry, as per which it could be seen that as on the date of accident, the policy was in force. Since it is the case of the appellant-Insurance Company that the rider of the moped was also not holding driving licence, but as the liability is saddled on the Insurance Company to pay the compensation, following the dictum of Hon'ble Supreme Court in the case of PAPPU AND OTHERS v. VINOD KUMAR LAMBA AND ANOTHER reported in (2018)3 SCC 208, liberty is reserved to the appellant-Insurance Company to satisfy the compensation awarded and then to recover the same from the owner of the moped, in accordance with law. Accordingly, point No.3 is answered.

¶115

Regarding Point No.4:

¶116

In the result, we proceed to pass the following:

¶117

O R D E R

¶118

Both the appeals are allowed in part;

¶119

Judgment and award dated 28^th January, 2022 passed in MVC No.04 of 2019 by the II Additional Senior Civil Judge and Motor Accident Claims Tribunal at Dharwad, is

¶120

16 -

¶121

NC: 2023:KHC-D:10699-DB MFA No. 102937 of 2022 C/W MFA No. 101985 of 2023

¶122

modified by enhancing the compensation to Rs.21,24,000/- as against Rs.20,13,000/awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till realisation;

¶123

Insurance company shall satisfy the award by depositing the same before the Tribunal with interest within sixty days from the date of receipt of certified copy of this judgment;

¶124